In light of the recently released Equal Employment Opportunity Commission (EEOC) guidance on harassment, Texas employers should think rethink how to design and make modifications to the workplace. With the protection of employees at the forefront, this new guidance outlines over 70 examples of unlawful harassment. It also encompasses new legally protected characteristics. By way of example, the EEOC has expanded its enforcement guidelines to explicitly prohibit harassment based on LGBTQ+ status, lactation, pregnancy, and pregnancy-related conditions. The guidance even covers intraclass harassment which is harassment based on a protected characteristic from a member of the same protected class as the aggrieved.

With respect to the evaluation of whether harassment violates federal law, the guidance focuses on three components: 1) whether the harassing conduct was based on a legally protected characteristic, 2) whether the harassing conduct constitutes or results in discrimination with respect to a term, condition, or privilege of employment, and 3) whether there is a basis for holding the employer liable for the discriminatory conduct. 

Harassment is a form of discrimination which is a violation of both federal and state law. Specifically, harassment is unwelcome conduct premised upon race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, older age beginning at 40, disability, or genetic information. Harassment becomes unlawful where the offensive conduct is so severe and pervasive enough to create a hostile work environment or the harassment involves a change to the terms, conditions, or privileges of the employee.

Additional examples provided by the EEOC that may rise to the level of actionable harassment includes, threatening or intimidating a person due to the person’s religious beliefs or lack of religious beliefs; sharing pornography or sexually demeaning depictions of people, including those generated by artificial intelligence; mimicking a person’s disability; making comments based on stereotypes about older workers; making sexualized gestures or comments, even when the behavior is not motivated by a desire to have sex with the victim; and forwarding an offensive or derogatory “joke” email. An exhaustive list of the examples can be found here.

Moreover, the EEOC guidance emphasizes the role of leadership in setting the tone for a harassment-free workplace. Senior leaders are encouraged to publicly condemn harassment, lead by example, and prioritize diversity, equity, and inclusion in all aspects of organizational decision-making. By fostering a culture of respect and inclusivity from the top down, leaders can help create workplaces where harassment is less likely to occur at the expense of their employees.

The guidance goes on to provide practical tips and best practices for employers to implement effective anti-harassment policies and procedures. This includes conducting regular training sessions for employees and managers, updating harassment policies to reflect current legal standards and best practices, and promoting diversity and inclusion initiatives that foster a culture of respect and belonging for all employees. As expressed by the EEOC, it is the employer’s responsibility to prevent harassment of their employees not only by supervisors and coworkers, but also by customers, clients, vendors, and the like.

Furthermore, the EEOC guidance highlights the importance of fostering a supportive environment for victims of harassment. Employers are urged to provide resources and support to employees who come forward with complaints, including access to counseling services, legal assistance, and other forms of support. By demonstrating empathy and support for victims, employers can help empower them to speak out against harassment and seek justice.

In conclusion, the new EEOC guidance on workplace harassment represents a significant step forward in the ongoing effort to create safe, respectful, and inclusive workplaces for all employees. By emphasizing the importance of proactive prevention, bystander intervention, thorough investigations, and victim support, the guidance provides employers with valuable tools and strategies for addressing and preventing harassment in the workplace. Ultimately, by working together to create cultures of respect and accountability, employers can help ensure that all employees can work free from harassment and discrimination.

While not the law, this newly robust guidance is a comprehensive guide which sets forth modern examples of harassment in the workplace. Give our office a call if you find yourself subject to harassment. We are committed advocates to employees’ rights.  https://www.wiley-wheeler.com/.